Milton v Draper [2011] NSWLEC 1337

Milton v Draper [2011] NSWLEC 1337

The Court was satisfied that all six trees, T1-T6 inclusive, had caused and were causing damage to the applicants' property because roots from the respondents' trees had breached the top of the root barrier, proliferated beneath the brick pavement, lifted driveway pavers and created tripping points. Reinstalling the barrier on the applicants' land would impose unreasonable inconvenience, and installing a barrier on the respondents' side would make the trees hazardous. The only reasonable and practical option was removal of the six trees.

Jurisdiction
Australia
Judgment Date
25 November 2011
Procedural Posture
Class 2 Tree Dispute Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After on Site Hearing
Outcome
Application to remove six trees upheld; orders made for removal of six trees and treatment of stumps to prevent regrowth.
Legal Topics
['damage to Property by Tree Roots' 'risk of Injury From Trees' 'removal of Trees' 'root Barrier Failure']
['trees Disputes Between Neighbours' 'property Law'] ['damage to Property by Tree Roots' 'risk of Injury From Trees' 'removal of Trees' 'root Barrier Failure']

Case Brief

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Procedural Posture

Class 2 Tree Dispute Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After on Site Hearing

Legal Issues

  1. 1 ["Whether the respondents' six trees had caused, were causing, or were likely in the near future to cause damage to the applicants' property under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the trees were likely to cause injury to any person.' 'Whether removal of the six trees was the reasonable and practical response to the driveway damage.']

Ratio Decidendi

The Court was satisfied that all six trees, T1-T6 inclusive, had caused and were causing damage to the applicants' property because roots from the respondents' trees had breached the top of the root barrier, proliferated beneath the brick pavement, lifted driveway pavers and created tripping points. Reinstalling the barrier on the applicants' land would impose unreasonable inconvenience, and installing a barrier on the respondents' side would make the trees hazardous. The only reasonable and practical option was removal of the six trees.

Court Disposition

Application to remove six trees upheld; orders made for removal of six trees and treatment of stumps to prevent regrowth.

Orders

  • ['The application to remove the six trees is upheld.' 'The respondents are to arrange and pay for the removal and stump treatment of the five Casuarina trees and one Paperbark tree identified in the Tree Dispute Claim Details as trees T1 to T6 inclusive. The trees are to be cut so that the remaining stump of each...